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Major Tribal Self-Governance Bill Stuck in Political Quagmire

Rob Capriccioso

2/27/12

WASHINGTON – Political games in the U.S. Congress are impacting a major piece of legislation that would promote tribal self-governance if signed into law.

The tribally-focused legislation was offered via an amendment to H.R. 7, the American Energy and Infrastructure Jobs Act, by Rep. Nick Rahall, D-W.V., in early February. The amendment would create a tribal transportation self-governance program at the U.S. Department of Transportation (DOT). Under it, the department and tribes would be able to enter into funding agreements that authorize tribes to perform program activities and receive the funding on transportation-related projects.

Tribal advocates have pushed for such a program for decades, in order to strengthen their own control over transportation projects on their lands, while getting rid of some major federal bureaucracy impacting their communities.

“[M]y amendment would streamline the process and eliminate unnecessary bureaucracy by reducing the role of the Bureau of Indian Affairs in the process,” Rahall said in a statement. “In addition, because it allows Indian tribes to use their transportation funds in the best manner to meet the needs of their citizens, my amendment will increase the efficiency and effectiveness of limited transportation funds.”

The federal funding system for tribal transportation projects is currently set up as having the DOT provide funding to the Bureau of Indian Affairs for roads and bridges that provide access to or are within Indian communities. The BIA manages and performs all transportation duties, including construction of the roads and bridges.

Under the Indian Self-Determination and Education Assistance Act (ISDEAA), the BIA may enter into self-governance agreements allowing tribes to receive funding to perform the BIA’s transportation duties. And since 2005, the DOT has entered into agreements directly with tribes to perform the transportation duties that would be performed by the BIA.

However – of contention to tribal leaders – these agreements are not self-governance agreements subject to the terms of the ISDEAA, so tribes do not always have the protections offered under that law.

“Native America desperately needs economic development and jobs,” Rahall added. “Given the proven success of the tribal self-governance program, there is no better way to enhance transportation funds to create jobs in Indian country than by extending self-governance to the Department of Transportation.”

The amendment cleared a hurdle on February 2 when it was adopted during the markup of H.R. 7 by the U.S. House Transportation and Infrastructure Committee, on which Rahall serves as the ranking Democrat. Before passage, Rep. Don Young, R-Alaska, spoke in favor of the amendment, and no one on the committee raised any problems with it.

The final bill, including the tribal provisions, was reported out of the committee on February 3.

But then, like so many times before in the current session of Congress, a game of political football began, this time endangering the self-governance good that was within the reach of tribes. Far-right conservatives began saying that the overall $260 billion bill was too expensive, while Democrats and some moderate Republicans raised concerns that it would cut funding for public transportation, bike paths, and pedestrians.

Speaker of the House John Boehner was soon uncertain on whether he could get the 218 votes needed to get the bill passed. “Will it pass? For the good of the country, I sure hope so,” Boehner said during a February 9 speech to the Conservative Political Action Conference. “But that’s not up to me, that’s up to the House.”

The Ohio Republican has made the legislation a priority and centerpiece of the House Republicans jobs agenda, so he has strong reason to broker a final bill. Later in the month, with passage still not guaranteed, tinkering began.

In a concession to conservative Republicans, Boehner agreed to reduce the cost and the duration of the bill, senior aides were reported as saying. Still, his office portrayed the changes as a move to appease the Democratic-controlled Senate: "Given Senate Democrats' unwillingness to pursue a longer-term infrastructure and energy plan, House Republican leaders are considering a revamped approach that would retain the speaker's vision of linking infrastructure to expanded American energy production," Boehner spokesman Michael Steel said in a statement.

What isn’t yet known is if the final brokerage will cost Indian country its self-governance. The bill’s final language is expected to be released around early March.

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